R. v. Knoedler (N.F.), 2009 SKPC 66

JudgeMorris, P.C.J.
CourtProvincial Court of Saskatchewan (Canada)
Case DateJuly 20, 2009
JurisdictionSaskatchewan
Citations2009 SKPC 66;(2009), 341 Sask.R. 69 (PC)

R. v. Knoedler (N.F.) (2009), 341 Sask.R. 69 (PC)

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. JL.075

Her Majesty the Queen v. Norbert F. Knoedler

(Information No. 24362600; 2009 SKPC 66)

Indexed As: R. v. Knoedler (N.F.)

Saskatchewan Provincial Court

Morris, P.C.J.

July 20, 2009.

Summary:

The accused was charged with driving while having an excessive blood-alcohol level and impaired driving.

The Saskatchewan Provincial Court found the accused not guilty of both charges.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - A police officer observed the accused's vehicle doing an illegal u-turn and suspected that the accused was attempting to avoid an approaching police vehicle - The officer pulled the accused's vehicle over - The accused got out and slowly walked towards the police car - The accused asked for directions - He explained that he had made the u-turn because he was lost - The officer asked the accused for his driver's licence and registration - The accused stumbled and fell into his vehicle - The officer did not note any other difficulty in his walking or getting in and out of vehicles - The accused took about three minutes to find his photo identification - The officer noted an odour of alcohol coming from the accused's vehicle, which he later identified as coming from the accused's breath - The officer arrested the accused for impaired driving - The accused was cooperative and surrendered his keys - The accused admitted to having consumed alcohol with his last drink being a few hours earlier - The officer had initially intended to do a roadside test, but upon noting slurred speech and confusion, made a breathalyser demand - The Saskatchewan Provincial Court concluded that the officer had lacked reasonable and probable grounds to make the breathalyzer demand and that that constituted a breach of the accused's s. 8 Charter rights - The court excluded the certificate of analysis - While the offence was serious, the circumstances did not suggest that the accused had posed any additional safety issues - There had been no sense of urgency - The accused had not been acting in a disrespectful manner - He had been cooperative and forthcoming - His driving had not been egregious, nor had there been any accident or dangerous driving - He had demonstrated neither violence nor aggression toward the police - See paragraphs 51 to 62.

Civil Rights - Topic 8587.1

Canadian Charter of Rights and Freedoms - Practice - Notice - General - The accused was charged with impaired driving offences - The accused raised a Charter argument at the opening of the trial on September 9, 2008 - The Crown raised objections and the trial was adjourned until November 20, 2008 - The Saskatchewan Provincial Court, after determining that the accused's s. 8 Charter rights were infringed, stated that the court had to determine if the accused had met the notice requirements for a Charter application - If it had not, the fact that the Crown had not proven reasonable and probable grounds to make a breathalyzer demand was a moot point - Applying R. v. Rilling (S.C.C.), the burden would be on the accused to show a Charter breach and not on the Crown to show reasonable and probable grounds - However, the court concluded that sufficient notice had been provided to the Crown on September 9, 2008, so that the Crown could bring forward sufficient evidence on the issue of whether the officer had reasonable and probable grounds to make a breath demand and whether the certificate of analysis should be excluded under s. 24(2) of the Charter - See paragraphs 41 to 50.

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evidence and proof - A police officer observed the accused's vehicle doing an illegal u-turn and suspected that the accused was attempting to avoid an approaching police vehicle - The officer pulled the accused's vehicle over - The accused got out and slowly walked towards the police car - The accused asked for directions - He explained that he had made the u-turn because he was lost - The officer asked the accused for his driver's licence and registration - The accused stumbled and fell into his vehicle - The officer did not note any other difficulty in his walking or getting in and out of vehicles - The accused took about three minutes to find his photo identification - The officer noted an odour of alcohol coming from the accused's vehicle, which he later identified as coming from the accused's breath - The officer arrested the accused for impaired driving - The accused was cooperative and surrendered his keys to the officer - The accused admitted to having consumed alcohol with his last drink being a few hours earlier - The officer noted that the accused had slurred speech - The accused was indecisive and confused at the police station - He was cooperative, patient, polite and compliant throughout the process - The Saskatchewan Provincial Court found that the charge of impaired driving was not made out - See paragraphs 63 to 73.

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - The Saskatchewan Provincial Court stated that "The appropriate time for determining whether the [breathalyzer] demand was reasonable is at the time the demand was made. The Court must consider as a question of fact what information was available to the peace officer such that the officer could form both the honest belief that the accused was impaired and the objective grounds to move from suspicion to objective belief. In determining the validity of the belief, the Court must consider the totality of the circumstances surrounding the demand." - See paragraph 29.

Criminal Law - Topic 1372

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Demand - Reasonable grounds - A police officer observed the accused's vehicle doing an illegal u-turn and suspected that the accused was attempting to avoid an approaching police vehicle - The officer pulled the accused's vehicle over - The accused got out and slowly walked towards the police car - The accused asked for directions - He explained that he had made the u-turn because he was lost - The officer asked the accused for his driver's licence and registration - The accused stumbled and fell into his vehicle - The officer did not note any other difficulty in his walking or getting in and out of vehicles - The accused took about three minutes to find his photo identification - The officer noted an odour of alcohol coming from the accused's vehicle, which he later identified as coming from the accused's breath - The officer arrested the accused for impaired driving - The accused was cooperative and surrendered his keys to the officer - The accused admitted to having consumed alcohol with his last drink being a few hours earlier - The officer had initially intended to do a roadside test, but upon noting slurred speech and confusion, made a breathalyser demand - The Saskatchewan Provincial Court stated that the observations upon which the officer relied to form reasonable and probable grounds that the accused was impaired included the typical indicia of impairment associated with the forming of a suspicion of impairment - These included glassy and red eyes, the smell of alcohol on the breath, stumbling and slurred speech - Generally, these alone were grounds for suspicion only and absent some other form of objective evidence, they were insufficient to ground a demand - The officer was entitled to consider the circumstance as a whole and need not prove a prima facie case - However, while the officer had a subjective belief that the accused was impaired, there was an absence of objective grounds sufficient for making a breathalyzer demand - See paragraphs 25 to 39.

Cases Noticed:

R. v. Bernshaw, [1994] S.J. No. 89, refd to. [para. 4].

R. v. Rilling (1975), 5 N.R. 327; 24 C.C.C.(2d) 81 (S.C.C.), consd. [para. 5].

R. v. Janzen (K.) (2006), 285 Sask.R. 296; 378 W.A.C. 296 (C.A.), refd to. [para. 5].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 5].

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, refd to. [para. 25].

R. v. Shepherd (C.) (2007), 289 Sask.R. 286; 382 W.A.C. 286 (C.A.), leave to appeal granted (2007), 376 N.R. 398; 314 Sask.R. 319; 435 W.A.C. 319; 156 C.C.R.(2d) 375; 2007 CarswellSask 488 (S.C.C.), refd to. [para. 26].

R. v. Ukrainetz (K.D.) (2006), 288 Sask.R. 42; 2006 SKPC 102, refd to. [para. 30].

R. v. Hicks (C.J.) (2008), 312 Sask.R. 42; 2008 SKPC 15, refd to. [para. 30].

R. v. Sperle (J.N.) (2004), 253 Sask.R. 200; 2004 SKQB 382, refd to. [para. 30].

R. v. Dwernychuk (M.K.) (1992), 135 A.R. 31; 33 W.A.C. 31 (C.A.), leave to appeal refused (1993), 151 N.R. 400; 141 A.R. 317; 46 W.A.C. 317 (S.C.C.), refd to. [para. 41].

R. v. Kutynec (1992), 52 O.A.C. 59; 12 C.R.(4th) 152; 70 C.C.C.(3d) 289 (C.A.), refd to. [para. 42].

R. v. Pelletier (J.G.) (1995), 128 Sask.R. 214; 85 W.A.C. 214 (C.A.), refd to. [para. 43].

R. v. Montgrand (R.H.) (1995), 135 Sask.R. 287 (Prov. Ct.), refd to. [para. 44].

R. v. Ukrainetz (K.D.) (2006), 284 Sask.R. 250 (Prov. Ct.), refd to. [para. 45].

R. v. Singer (D.G.) (1999), 176 Sask.R. 266; 25 C.R.(5th) 374 (Q.B.), refd to. [para. 47].

R. v. Forsberg (A.C.), [2000] Sask.R. Uned. 159 (Prov. Ct.), refd to. [para. 47].

R. v. Field (J.A.) (2001), 204 Sask.R. 161 (Prov. Ct.), refd to. [para. 47].

R. v. Hiebert (R.A.) (2003), 237 Sask.R. 41 (Prov. Ct.), refd to. [para. 47].

R. v. Johnson (L.R.) (1997), 152 Sask.R. 151; 140 W.A.C. 151 (C.A.), refd to. [para. 48].

R. v. Giesbrecht (M.) (2008), 315 Sask.R. 65 (Prov. Ct.), appld. [para. 51].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 33 C.C.C.(3d) 1, refd to. [para. 53].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 54].

R. v. Haas (T.) (2005), 201 O.A.C. 52; 200 C.C.C.(3d) 81 (C.A.), refd to. [para. 54].

R. v. Stellato (T.), [1994] 2 S.C.R. 478; 168 N.R. 190; 72 O.A.C. 140, affing. (1993), 61 O.A.C. 217; 12 O.R.(3d) 90 (C.A.), refd to. [para. 56].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 58].

R. v. Hebert (1990), 110 N.R. 1 (S.C.C.), refd to. [para. 59].

R. v. Andrews (M.A.) (1996), 178 A.R. 182; 110 W.A.C. 182 (C.A.), refd to. [para. 64].

R. v. Schaeffer (D.B.) (2005), 257 Sask.R. 219; 342 W.A.C. 219; 2005 SKCA 33, refd to. [para. 64].

R. v. Landes (T.) (1997), 161 Sask.R. 305 (Q.B.), refd to. [para. 65].

R. v. Edwards (R.H.) (2006), 282 Sask.R. 234 (Prov. Ct.), refd to. [para. 66].

Counsel:

Barrie W. Stricker, for the Crown;

Daniel P. Kwochka, for the accused.

This matter was heard by Morris, P.C.J., of the Saskatchewan Provincial Court, who delivered the following decision on July 20, 2009.

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1 practice notes
  • R. v. Knoedler (N.F.), (2011) 370 Sask.R. 226 (QB)
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • 7 Marzo 2011
    ...driving while having an excessive blood-alcohol level and impaired driving. The Saskatchewan Provincial Court, in a decision reported at 341 Sask.R. 69, found the accused not guilty of both charges. The Crown appealed the acquittal on the driving while having an excessive blood-alcohol The ......
1 cases
  • R. v. Knoedler (N.F.), (2011) 370 Sask.R. 226 (QB)
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • 7 Marzo 2011
    ...driving while having an excessive blood-alcohol level and impaired driving. The Saskatchewan Provincial Court, in a decision reported at 341 Sask.R. 69, found the accused not guilty of both charges. The Crown appealed the acquittal on the driving while having an excessive blood-alcohol The ......

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